I went through a phase a few years ago of watching all the classic Hollywood dance movies, especially those of the legendary couple Fred Astaire and Ginger Rogers. So it was with a start this week that I learned recently that the key Supreme Court decision protecting parody as free speech, and against charges of the infringement of intellectual property rights, arose from those movies. The case is ROGERS v. GRIMALDI (1989). This means that it was decided at about the time I was watching all those movies, rented from a now-forgotten place called Blockbusters. That case was brought by THE Ginger Rogers, unhappy about a movie about two fictional Italian Cabaret performers. The name of the movie was "Ginger and Fred," because the two fictional performers in the movie were known to their admirers as "the Italian Ginger and Fred." Of course this presumes the familiarity of those admirers with the couple in the black-and-white photo above. A case now before the Supreme C...
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This is the second part in our four part discussion of the US Supreme Court's October 2019 term, recently concluded. Perhaps the most eagerly awaited of the decisions that SCOTUS released late in the October 2019 term was its interpretation of the Civil Rights Act, encompassing within the scope of that act the prohibition of a discharge of a homosexual or transgender person from employment on account of that identity. The decision is captioned Bostock v. Clayton County . Gerald Bostock was a coordinator of child welfare services for Clayton County, Georgia, a county of roughly a quarter million population. Justice Gorsuch wrote the opinion for the majority (six). This itself was a body blow to the religious conservatives who are a critical part of President Trump's political support. Many of those folks have long held the view that, "no, Trump is no great shakes as a human being, but at least he will deliver for us on judicial nominations." Gorsuch's opi...
Returning to the issue of the interface of copyright and design patents, which I discussed here on May 12: In the course of my research for an upcoming book review, I've gone as I sometimes do beyond the 'four corners' of the book and have read the following blog post, from Pamela Samuelson: https://patentlyo.com/patent/2017/05/overlapping-protecting-innovations.html That entry, posted almost precisely a year ago now, contends that in the specific field of application program interface (API) there isn't any significant overlap between the two sorts of IP protection. That position puts Ms Samuelson (portrayed here, a professor at Berkeley Law) at odds with the Federal Circuit, which recently (in ORACLE v. GOOGLE) said precisely the opposite.
I'm working (too slowly) on a review of a book that takes an international comparative approach to copyright law. I'll record a point here that intrigues me, but that probably won't get into my review. In the European Union, it seems there is now a significant difference at law between the music that is playing in the dentist's office when patients are in the chair undergoing the rigors of examination or repair work on the one hand, and the screening of television programs in the waiting room of a rehab facility as a diversion for patients. I had never given any thought to copyright in either context before, so this is all new to me. It is not so much that there IS a difference that interests me, but how that difference is justified. As EU directives put the point, a copyright owner has a right to control when his/her/its property will be "communicated to the public." Although this is not the sole consideration, a court is more likely to find a com...
I'm continuing my list of most-important-decisions from the US Supreme Court, year by year. Today I'll cover the 80s. Again, each choice is extremely subjective. If you don't care about SCOTUS, you might at least enjoy the photo of Molly Ringwald. Proceeding.... 1980, Pruneyard Shopping v. Robins -- free speech, property rights, state sovereignty, shopping malls 1981, Minnesota v. Clover Leaf Creamery -- bottle bills survive constitutional challenge 1982, Arizona v. Maricopa Cnty Medl Society -- antitrust price fixing, physicians 1983, INS v. Chadha -- separation of powers, legislative veto 1984, Chevron v. NRDC -- deference to administrative discretion 1985, Harper & Row v. Nation Enterprises -- "fair use" of copyrighted material 1986, Batson v. Kentucky -- jury composition, racial bias 1987, Edwards v. Aguillard -- creationism and establishment of religion 1988, Morrison v. Olson -- separation of powers & special prosecutors...
I'm thinking about this decision today, though I'm not sure why. https://supreme.justia.com/cases/federal/us/471/539/case.html That link takes you to Harper & Row v. Nation Enterprises , a 1985 Supreme Court decision about copyright and the limits of the "fair use" dissent. So you won't have to follow that link to know what is on my mind, here's the syllabus, pasted. In 1977, former President Ford contracted with petitioners to publish his as yet unwritten memoirs. The agreement gave petitioners the exclusive first serial right to license prepublication excerpts. Two years later, as the memoirs were nearing completion, petitioners, as the copyright holders, negotiated a prepublication licensing agreement with Time Magazine under which Time agreed to pay $25,000 ($12,500 in advance and the balance at publication) in exchange for the right to excerpt 7,500 words from Mr. Ford's account of his pardon of former President Nixon. Shortly before ...
Yesterday, I wrote a few words about where Valeant stands now. I'd like to follow up today by taking a look back. Valeant was a California company that merged with Canada's Biovail in 2010. The two companies were of about equal size, and some would say the resulting company had as much of Biovail's DNA in it as Valeant's, although of course calls itself by Dad's name. And at that time, Biovail was known as a product development company, (with some pushing-the-envelope bookkeeping tricks, but let's be charitable and forget about that.) Unfortunately some of its key products, including the neurological medicine Wellbutrin, were suffering from tough competition. Pearson, in 2010, set the company on quite another course. He was more interested in acquiring other companies than developing products. Let's skip ahead. Valeant spent much of 2014 trying to buy Allergan, which failed because Allergan found another suitor, and was acquired by Actavis for $66 bi...
What else may be said about the Supreme Court term newly concluded? From the two Big Ones near the end and from the wailing that has followed them, some might infer that we now have a "liberal" court (meaning one that is at least somewhat to the left of the center of the US political spectrum, whatever exactly that in turn means). But that would be a superficial reading. This is after all almost the same configuration of justices that decided CITIZENS UNITED (2010). [Though Kagan has arrived and Stevens has departed since then.] Looking at the three cases with which I began this discussion, last Saturday, it isn't obvious what chalk marks one would make on a left/right score board anyway. The energy-policy preemption case was a federal-state matter. Phrases such as "state's rights" are more part of the lexicon of the right than of the left. But in this case, it was Scalia who wrote the dissent, and who thus took the broader view of federal responsibilit...
Wikileaks is now saying that it is about to release more information about the Trans-Pacific Partnership (TPP). It'll be a 30,000 word document. Okay, you're saying "be still my beating heart" wiseguys, aren't you? But this could be significant. A year ago, Wikileaks released its first satchel [e-satchel?] of TPP documents, the Intellectual Property agreement. The participating nations constitute about 40% of the gross net product of the planet. They include: the U.S., Canada, Japan, Brunei, Australia, New Zealand, Singapore, Peru and Mexico. Critics of the TPP interpreted the materials disclosed in late 2013 as an effort to get higher prices for drugs, higher profits for Big Pharma. So: what has Wikileaks got in store this year? ------------------ The above photo shows the leaders of all the TPP member states as a 2010 summit.
I'd like to thank Jack Schecter, of the "IP Insight" column of The Federal Lawyer. His column in the October/November issue of that periodical, called "Grand Theft Video: Judge Gives Gamemakers Hope for Combating Clones" proved surprisingly thought provoking. Regular readers of this blog and its precursor know that I follow IP issues at least casually . Schecter discusses a case out of the federal district court for the district of New Jersey, Tetris Holding v. XIO Interactive, the fight over a clone of the famous video game "Tetris." The clone, by XIO Interactive, is known as "Mino." The case turned on the idea/expression dichotomy in copyright law. The defendant contended that it could use the idea behind Tetris (which is accurate), plus any functionally necessary attributes of the game. Further, it contended that pretty much everything about Tetris fell into one or the other of those categories, so it was free to copy. For...